BROYLES (JACK) VS. CULBERTSON (MILDRED), ET AL.Annotate this Case
RENDERED: OCTOBER 10, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 05-CI-00521
ROMEY GENE DAUGHERTY;
AND KENTUCKY TRUST COMPANY
OPINION AND ORDER
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BEFORE: COMBS, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Jack Broyles (hereinafter “Jack”) appeals from the trial
court’s findings that he violated his fiduciary duties by transferring property into
his name by means of a power of attorney for his mother, Mildred Culbertson
(hereinafter “Mildred”), and he appeals from the finding that Mildred’s brother,
Gene Daugherty, is entitled to the “Persimmon Knob Tract” of the property.
Kentucky Trust Company (hereinafter “Kentucky Trust”) asserts that it is an
indispensable party to this appeal and moves this Court to dismiss the appeal for
failure to name it as a party in the Notice of Appeal. After careful review, we find
that Kentucky Trust is an indispensable party and accordingly dismiss this appeal.
This case originated as an action by Mildred in the Boyle Circuit
Court to recover real property and personal assets owned by her but transferred and
divested from her and placed in the name of Jack by means of a power of attorney.
Prior to any determinations having been made by the Boyle Circuit Court on the
original complaint, Jack filed a petition for determination of disability for Mildred
with the Boyle District Court. On December 16, 2005, a jury found Mildred
partially disabled, and on January 17, 2006, the Boyle District Court appointed
Kentucky Trust as her Limited Conservator. That same day, the court ordered that
none of Mildred’s assets, income, or accounts was to be dispersed or transferred
without the approval of Kentucky Trust, and Kentucky Trust was further given
possession of several of Mildred’s specific assets. In another order entered March
9, 2006, the Boyle Circuit Court substituted Kentucky Trust for Mildred as
Plaintiff in the instant case under CR 25.02.
“The statutory requirement, that the names of all parties must be set
out in the statement of appeal, is not an unreasonable or burdensome one.” See
Com., Dept. of Hwys. v. Scott, 435 S.W.2d 767 (Ky. 1968). Whoever is a party to
the record in the lower court and would be a “necessary party” to any further
proceedings after the reversal of the judgment, must be a “party to the appeal” or
the appeal will be dismissed. See Land v. Salem Bank, 130 S.W.2d 818 (Ky.
1939). For purposes of appeal, a person is a necessary party if the person would be
a necessary party for further proceedings in the circuit court if the judgment were
reversed. See Id.; see also Hammond v. Department for Human Resources, 652
S.W.2d 91 (Ky.App. 1983). Given that Kentucky Trust replaced Mildred as the
Plaintiff below and is now in possession of the majority of her assets, it is readily
apparent that it is a necessary and indispensable party.
“The notice of appeal shall specify by name all appellants and all
appellees. . . .” CR 73.03 (emphasis added). A notice of appeal, when filed,
transfers jurisdiction of the case from the circuit court to the appellate court and
places the named parties in the jurisdiction of the appellate court. Manly v. Manly,
669 S.W.2d 537, 539 (Ky. 1984). Kentucky Trust is neither named in the caption
of the Notice of Appeal nor in the body of the Notice of Appeal. Therefore, we do
not have jurisdiction over it. Additionally, since it is an indispensable party to the
action, the only remedy for Broyles’ failure to name them in the Notice of Appeal
is dismissal. See Yocom v. Franklin County Fiscal Court, 545 S.W.2d 296
This appeal is ordered, and is hereby, dismissed.
/s/ James H. Lambert
JUDGE, COURT OF APPEALS
ENTERED: October 10, 2008
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kirk A. Correll
H. Vincent Pennington, III